2003 (10) TMI 227 - AT - Central Excise

Manufacturer Of PVC resins - Job work - Cenvat/Modvat on capital goods - Declaration - Imposition of penalty - benefit of Modvat Credit on the very same capital goods on which the benefit was allowed by the Assistant Commissioner by order-in-original - HELD THAT - In the instant case, undisputedly M/s. CSL have filed Modvat declaration under Rule 57T to avail the benefit of Modvat credit on capital goods and in the declaration they have given description of the goods as capital goods used in the assembly of power plants and they have also shown the sub-heading under CETA and have also described the goods as spares of Diesel Generating machinery. The objection of the department is that they have not indicated in the declaration that these items were being brought for the assembly of new power plants which would come into existence at a later date. It is settled law that substantive benefit of Modvat Credit cannot be denied even if the declaration does not contain all the particulars, but contain details of payment of duty, description of the capital goods, assessable value, name and address etc. It is not the case of the department that these essential particulars were missing from the declaration. Inasmuch as M/s. CSL have filed the declaration, they cannot be said to have suppressed any material information from the department. However, as noted above, in the instant case, though the final products which emerged out of the capital goods are exempted from duty, yet M/s. CSL want to avail the benefit in respect of the duty paid on the capital goods while clearing PVS resin which is a final product manufactured by using the inputs caustic soda lye and flakes, apart from electricity and on which no duty is payable. We note that the decision in the case of Gujarat Ambuja Cement 2000 (8) TMI 178 - CEGAT, NEW DELHI was cited by the party before the Commissioner as noted by him in para 54 of the order impugned, but he has endeavoured to distinguish the ratio of this ruling on the ground that the Department has filed reference application and hence the matter is sub judice. It is well settled that unless operation of a particular order is stayed by a higher forum, it has to be acted upon. Merely because the department has filed a reference application, that by itself cannot be a reason not to grant relief flowing from that particular order. As regards, invocation of longer period of limitation is concerned, we find from the records that it is an admitted fact that they have filed declaration and it cannot be said that they have suppressed any material information from the department with an intent to evade payment of duty. Therefore, the charge of suppression of facts with intent to evade payment of duty fails. So far as imposition of penalty on M/s. Wartsila is concerned, the evidence on record does not show that they have committed any contravention of Rule 173Q(bbb) or abetted M/s. CSL to take the benefit of Credit. We, therefore, set aside the penalty on M/s Wartsila and allow their appeals. Thus, it is clear that the Joint Commissioner who has signed the comments wanted to say that the decision rendered by the North Regional Bench is not applicable to the Commissioner of Central Excise, Coimbatore. This shows ignorance of the law as regards the applicability of the decisions rendered by CESTAT. He should have known that the law laid down by any Bench of the Tribunal is applicable throughout the country, unless the same is stayed or overruled by larger bench or by a higher judicial forum.

Issues Involved:
1. Denial of Modvat Credit on capital goods.
2. Applicability of Rule 57Q, 57D(2), 57R(2), and 57T(7).
3. Determination of the manufacturer of DG sets.
4. Invocation of longer period of limitation.
5. Imposition of penalty on M/s. Wartsila.

Summary:

1. Denial of Modvat Credit on capital goods:
The Commissioner disallowed Modvat credit availed by M/s. Chemplast Sanmar Ltd. (M/s. CSL) on the power plant (Diesel Generating Set) supplied by M/s. Wartsila, arguing that the DG sets were exempt from duty. M/s. CSL contended that the denial was contrary to previous decisions and that the DG sets were not manufactured at their factory but were components of a captive power plant.

2. Applicability of Rule 57Q, 57D(2), 57R(2), and 57T(7):
M/s. CSL argued that under Rule 57Q, they were entitled to Modvat Credit on capital goods used in the manufacture of their final product. They cited Rule 57D(2) and 57R(2) to support that credit should not be denied even if intermediate products are exempt from duty. The Tribunal noted that the final product from the captive power plant was electricity, which is non-dutiable, and used in the manufacture of PVC resins, a dutiable product.

3. Determination of the manufacturer of DG sets:
The Tribunal found that the DG sets were manufactured by M/s. Wartsila at the premises of M/s. CSL under a turn-key contract. Despite the Commissioner's finding that M/s. Wartsila was not a contractor or job worker, the Tribunal concluded that M/s. Wartsila acted as a contractor for M/s. CSL, making the latter eligible for Modvat Credit under Rule 57T(7).

4. Invocation of longer period of limitation:
The Tribunal held that the longer period of limitation was not applicable as M/s. CSL had filed the necessary declarations and there was no suppression of facts. The charge of suppression with intent to evade duty was dismissed.

5. Imposition of penalty on M/s. Wartsila:
The Tribunal set aside the penalty imposed on M/s. Wartsila, finding no evidence of contravention of Rule 173Q(bbb) or abetment in the commission of the offense by M/s. CSL.

Conclusion:
The Tribunal allowed the appeals filed by M/s. CSL and M/s. Wartsila, setting aside the impugned orders and penalties. The Tribunal emphasized that the law laid down by any Bench of the Tribunal is applicable throughout the country unless stayed or overruled by a higher judicial forum.

← Previous Next →